How can we execute people if 1 in 25 on death row are innocent? | Austin Sarat

‘The state rushed to put Lee to death before its supply of Midazolam expired.’Photograph: Benjamin Krain/AP

Arkansas executed Ledell Lee on Thursday night, after it fought and won a complex and sometimes confusing legal battle. The state executed him in spite of Lee’s insistence that he was not guilty of murdering Debra Rees, a crime committed more than 20 years ago. It did so despite doubts about whether he had sufficient intellectual capacity to be “eligible” for the death penalty.

The state rushed to put Lee to death before its supply of midazolam expired, claiming that it had a compelling interest in carrying out the “lawful” decision of the jury which sentenced him and that the execution would bring closure to the Rees family. Yet the way it went about doing so hardly seems likely to bring consolation to those who grieve at that family’s terrible loss – and raises many concerns about the potential miscarriage of justice.

A 2014 report by the National Academy of Sciences estimated that 1 in every 25 people given a death sentence are in fact innocent of the crime for which they are sentenced. Moreover, we know that more than 150 people have been exonerated since the death penalty’s return in 1976.

Because of such problems, public confidence in the fairness of the death penalty process is eroding. Thus, a 2013 Gallup poll found that only 52% of the American public believed that the death penalty was administered fairly.

These doubts surfaced in dramatic fashion when Arkansas announced its plan to execute eight people in 10 days and explained that it was doing so to meet the deadline imposed by its drug expiration problem.

The problems that plague the death penalty system have persisted for decades. It was 45 years ago, in Furman v Georgia, that the US supreme court called attention to the way in which death sentences are carried out in the US and halted all executions in this country. It did so not because it found anything inherently problematic about the death penalty. Instead it focused on difficulties in the way it was administered.

The court found defects in the process through which some capital defendants were sentenced to death while others were spared. It described death sentencing as fraught with arbitrariness. As Justice Potter Stewart put it in his concurring opinion: “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.”

The court allowed the death penalty to resume four years after Furman. It did so once it was satisfied that procedures had been put in place to insure that when juries made decisions in death cases that they would be given sufficient guidance so that sentences would no longer be imposed or carried out arbitrarily.

Indeed, because death is different in kind from any other punishment, the court insisted that states wishing to execute would have to insure that heightened standards of reliability, what some have called “super due process”, would be accorded to those accused and convicted of capital crimes.

While much has changed in death penalty jurisprudence and in American attitudes toward that punishment since the mid-1970s, when those standards were put in place, the continuing legitimacy of capital punishment depends on insuring that they are met.

Responding to those who questioned Arkansas’ assembly-line style of execution, Governor Asa Hutchinson acknowledged that he would have preferred a more deliberate pace but insisted that the time had come to bring closure to the families of those who had been murdered so long ago.

As he put it in a recent television interview: “There’s been a 25-year nightmare for the victims that had to deal with this and now it’s time for justice to be carried out.”

But surely it was no favor to those who mourn the loss of a loved one to proceed with an execution without having resolved all doubts about the guilt of the condemned. And it can hardly bring the solace they so profoundly deserve to know that Lee’s execution was shadowed by so much controversy.

Instead of focusing on the loss that occasioned last night’s execution, the world’s attention was focused instead on what seemed to be the unseemly process that led to it.

Justice Stephen Breyer, who dissented from the supreme court’s last-minute decision to allow Lee’s execution to proceed, got it right when he highlighted “the arbitrariness with which executions are carried out in this country” and noted that allowing the expiration date of Arkansas’ supply of midazolam to be “a determining factor separating those who live from those who die is close to random”.